Paternity

Acknowledgement of Children

Circumstances in life may lead to a wrong registration in a child's birth certificate.

It could be that after birth a child is registered on the birth certificate as "father unknown". It could also happen that the man who is registered as the father of the child on the birth certificate is not really the natural (biological) father of that child.

In this context, therefore, ‘acknowledgment’ means that the biological father of the child takes legal action to correct any misinformation in the child's birth certificate.

Complications such as these always arise with men and there are hardly any cases involving a child's maternal identity. One of the main reasons for this is that few women give birth in secret. 

Acknowledgement by the father (when done alone)

When the father acknowledges a child, which is registered as father unknown, separately from the mother a special procedure can be followed. In such case the father must start by sending a judicial letter to the mother stating that he intends to acknowledge the child.

If the mother does not oppose the demand contained in the judicial letter within 2 months, then the letter is sent to the Director of Public Registry who will register the child to be the offspring of the person stated in the judicial letter.

If the mother opposes the registration within the said two months then the father may initiate a case before the Family Court against the mother. The Court will examine the evidence and decide whether the man who is alleging that he is the father of that child is really is the father of the child, or otherwise. 

 

Repudiation

Through an action for repudiation, the man who is named as the father of a child in the birth certificate challenges this assertion. If the action is successful he would no longer be held to be the child’s father. One of the most important consequences of repudiation is that the name of the father in the Public Registry will be changed, either to a ‘father unknown’ status or to the name of the real father of the child, as the case may be.

 


The presumption that the husband’s mother is the father
The law presumes that a child who has been conceived in wedlock is the child of the mother’s husband (Article 67, Civil Code). Therefore the husband of the mother is automatically recorded in the Public Registry as the father of the child. However, the husband or natural father may challenge this presumption through an action for repudiation.
The presumption that the child is the son or daughter of the mother’s husband is very strong. Indeed a declaration by the mother that her husband is not the father of the child is not enough to disprove the father’s paternity (Article 70(2), Civil Code). In practical terms, this provision of law means that even if the mother claims (while she is at a hospital after giving birth) that her husband is not the father of her child, the child will still be registered as the son or daughter of her husband. 

 

Impeaching Filiation
There are certain people (apart from the wife’s husband) who may have an interest in proving that a particular person is not the real father of a particular child. These could be the biological/natural father of the child or the heirs of a person who is registered to be the father of a child. When impeaching filiation (i.e. requesting the court to change the name provided as the child’s father in the child’s birth certificate).
However different procedures apply and these depend on the marital status of the mother.
A child born 300 days after the dissolution of marriage
Any interested person may impeach the filiation of any child who is born 10 months after the dissolution or annulment of the marriage (Article 76, Civil Code). When a child is born 10 months after the dissolution of marriage (i.e. 10 months after annulment or divorce) the presumption at law that the child is the offspring of the mother does not subsist any longer.

 

A child born within marriage
Any person interested may impeach the paternity of a child who is born in wedlock if he proves that: between 10 and 6 months from the birth of the child, the husband of the wife was away from his wife or for some other accidental cause; between 10 and 6 months from the birth of the child, the wife committed adultery and produces evidence of any other fact (which may be DNA tests) that exclude the husband as the natural father.  

 

Procedure for paternity by the natural father
Any person who claims to be the natural father of a child that is born in wedlock may institute an action (through a sworn application) against the wife, her husband and the child so that he is declared by the Court to be the father of the child. The case will be successful if he proves that between 10 and 6 months before the birth of the child the wife conceived with him and brings forward evidence (such as DNA test) that exclude the husband as the natural father of the child (Article 77A, Civil Code).

 

Procedure for paternity by the wife
In case that a wife would like to declare that a given child is not that of her husband she should follow the same procedure as mentioned directly above this paragraph (Article 77B, Civil Code).
In an action for repudiation, the Court may invite all the parties involved (including the child) for a genetic test. However, the court may not force any party to submit to the genetic tests and it is up to the court to decide whether the child should submit to the tests or not if the child is still a minor. In the case that any of the parties involved refuse to submit to the tests the court may draw inferences as may be justified from refusing to submit to such test (Article 70(3)).